Princípio Da Proibição Do Retrocesso Em Matéria Ambiental 2015 Vol. 2

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ISBN: XXX-XXX-XXX 
ISBN: 978-85-7696-162-8 
ORGANIZADORES 
Michel Prieur 
Marcelo Buzaglo Dantas 
Ricardo Stanziola Vieira 
 
COORDENADORES 
Denise Schmitt Siqueira Garcia 
Maria Claudia Da Silva Antunes De Souza 
Liton Lanes Pilau Sobrinho 
 
PRINCÍPIO DA PROIBIÇÃO DO 
RETROCESSO EM MATÉRIA 
SOCIOAMBIENTAL: ESTUDOS DAS 
TEORIAS DE MICHEL PRIEUR 
VOLUME 2 
 
AUTORES 
Erin Daly 
James R. May 
Gabriel Real Ferrer 
Paulo Márcio Cruz 
Heloise Siqueira Garcia 
Rafaela Borgo Koch 
Amadeu Elves Miguel 
Guilherme Nazareno Flores 
Camila Monteiro Santos Stohrer 
Caroline Vieira Ruschel 
Claudia Regina de Souza Pereira Severo 
José Everton da Silva 
Gilmara Vanderlinde Medeiros D Avila 
Juliete Ruana Mafra Granado 
Natammy Luana de Aguiar Bonissoni 
Magda Cristina Villanueva Franco 
Sonia Aparecida de Carvalho 
Celso Costa Ramires 
Rodrigo Chandohá da Cruz 
 
 
 
 
 
Reitor 
Dr. Mário César dos Santos 
 
Vice-Reitora de Graduação 
Cássia Ferri 
 
Vice-Reitor de Pós-Graduação, Pesquisa, 
Extensão e Cultura 
Valdir Cechinel Filho 
 
Vice-Reitor de Planejamento e 
Desenvolvimento Institucional 
Carlos Alberto Tomelin 
 
Procurador Geral da Fundação UNIVALI 
Vilson Sandrini Filho 
 
Diretor Administrativo da Fundação UNIVALI 
Renato Osvaldo Bretzke 
 
 
Organizadores 
Michel Prieur 
Marcelo Buzaglo Dantas 
Ricardo Stanziola Vieira 
 
Coordenadores 
Denise Schmitt Siqueira Garcia 
Maria Claudia Da Silva Antunes De Souza 
Liton Lanes Pilau Sobrinho 
 
Autores 
Erin Daly 
James R. May 
Gabriel Real Ferrer 
Paulo Márcio Cruz 
Heloise Siqueira Garcia 
Rafaela Borgo Koch 
Amadeu Elves Miguel 
Guilherme Nazareno Flores 
Camila Monteiro Santos Stohrer 
Caroline Vieira Ruschel 
Claudia Regina de Souza Pereira Severo 
José Everton da Silva 
Gilmara Vanderlinde Medeiros D Avila 
Juliete Ruana Mafra Granado 
Natammy Luana de Aguiar Bonissoni 
Magda Cristina Villanueva Franco 
Sonia Aparecida de Carvalho 
Celso Costa Ramires 
Rodrigo Chandohá da Cruz 
 
 
Capa 
Alexandre Zarske de Mello 
 
Diagramação/Revisão 
Alexandre Zarske de Mello 
Heloise Siqueira Garcia 
 
Comitê Editorial E-books/PPCJ 
 
Presidente 
 Dr. Alexandre Morais da Rosa 
 
Diretor Executivo 
 Alexandre Zarske de Mello 
 
Membros 
Dr. Clovis Demarchi 
MSc. José Everton da Silva 
Dr. Liton Lanes Pilau Sobrinho 
Dr. Sérgio Ricardo Fernandes de Aquino 
 
Projeto de Fomento 
Obra resultado do projeto “Escola de Altos Estudos” 
de fomento da CAPES com o Professor Doutor Michel 
Prieur, de título e temática “Princípio da proibição de 
retrocesso em matéria socioambiental e proteção de 
processos ecológicos essenciais e tutelas de grupos 
sociais vulneráveis", realizada em outubro e 
novembro de 2014 no Programa de Pós-Graduação 
Stricto Sensu em Ciência Jurídica da UNIVALI – PPCJ. 
 
Créditos 
Este e-book foi possível por conta da 
Editora da UNIVALI e a Comissão Organizadora 
E-books/PPCJ composta pelos Professores 
Doutores: Paulo Márcio Cruz e Alexandre 
Morais da Rosa e pelo Editor Executivo 
Alexandre Zarske de Mello. 
 
Endereço 
Rua Uruguai nº 458 - Centro - CEP: 88302-901, 
Itajaí - SC – Brasil - Bloco D1 – Sala 427, 
Telefone: (47) 3341-7880 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
FICHA CATALOGRÁFICA 
 
 
 
 
P935 
 
Princípio da proibição do retrocesso em matéria socioambiental : [recurso 
eletrônico] estudos das teorias de Michel Prieur / Organizadores, Michel 
Prieur, Marcelo Buzaglo Dantas, Ricardo Stanziola Vieira ; coordenadores, 
Denise Schmitt Siqueira Garcia, Maria Claudia Da Silva Antunes De Souza, 
Liton Lanes Pilau Sobrinho ; autores: Erin Daly... [et al.] - Dados eletrônicos. – 
Itajaí : UNIVALI, 2015. – v. 2. 
 
 
 Livro eletrônico. 
 Modo de acesso: World Wide Web: <http://www.univali.br/ppcj/ebook> 
 Incluem referências. 
 Vários autores. 
 Incluem textos em inglês e português. 
 
 ISBN 978-85-7696-162-8 (e-book) 
 
 1. Prieur, Michel – Pesquisa. 2. Direito – Aspectos ambientais. 3. Direito 
ambiental – Pesquisa. 4. Direitos humanos. 5. Sustentabilidade – Aspectos 
sociais. I. Prieur, Michel. II. Dantas, Marcelo Buzaglo. III. Vieira, Ricardo 
Stanziola. IV. Garcia, Denise Schmitt Siqueira. V. Souza, Maria Claudia da 
Silva Antunes de. VI. Pilau Sobrinho, Liton Lanes. VII. Daly, Erin. VIII. Título. 
 
 
 
 CDU: 342:502.34 
 
 Ficha catalográfica elaborada pela Biblioteca Central Comunitária – UNIVALI 
 
 
 
 
SUMÁRIO 
APRESENTAÇÃO ................................................................................................................................. VII 
Marcelo Buzaglo Dantas 
CONSTITUTIONAL ENVIRONMENTAL RIGHTS AND LIABILITIES ........................................................... 9 
Erin Daly 
James R. May 
DIREITO, SUSTENTABILIDADE E A PREMISSA TECNOLÓGICA COMO AMPLIAÇÃO DE SEUS 
FUNDAMENTOS ................................................................................................................................. 31 
Gabriel Real Ferrer 
Paulo Márcio Cruz 
A AVALIAÇÃO AMBIENTAL ESTRATÉGICA E SUA RELAÇÃO COM O DIREITO AMBIENTAL: UM 
INSTRUMENTO GARANTIDOR DA SUSTENTABILIDADE ..................................................................... 63 
Heloise Siqueira Garcia 
IMPACTOS AMBIENTAIS E SOCIAIS CAUSADOS PELO USO DE AGROTÓXICOS NO BRASIL ................ 85 
Rafaela Borgo Koch 
GOVERNANÇA AMBIENTAL E ACESSO À INFORMAÇÃO: DIÁLOGO NA PESPECTIVA DOS DESAFIOS À 
JUSTIÇA AMBIENTAL E DESENVOLVIMENTO ................................................................................... 103 
Amadeu Elves Miguel 
Guilherme Nazareno Flores 
A LEGISLAÇÃO AMBIENTAL BRASILEIRA À LUZ DA CONVENÇÃO DE AARHUS ................................ 123 
Camila Monteiro Santos Stohrer 
GOVERNANÇA GLOBAL AMBIENTAL: o pensamento complexo como Pressuposto fundamental . 137 
Caroline Vieira Ruschel 
A FIGURA DO “AMICUS CURIAE” NO ORDENAMENTO JURIDICO BRASILEIRO: um estudo de caso a 
partir da Ação Direta De Insconstitucionalidade das Leis Complementares nº 214 e 215 de 31 de 
dezembro 2012 – Lei de Zoneamento de Itajaí (SC) ........................................................................ 161 
Claudia Regina de Souza Pereira Severo 
José Everton da Silva 
A RESERVA FLORESTAL LEGAL .......................................................................................................... 189 
Gilmara Vanderlinde Medeiros D Avila 
O NOVO PARADIGMA DA SUSTENTABILIDADE E OS ANSEIOS DO BEM-ESTAR EQUILIBRADO E DA 
BOA GOVERNANÇA .......................................................................................................................... 207 
Juliete Ruana Mafra Granado 
Natammy Luana de Aguiar Bonissoni 
CRISE DE GOVERNANÇA NO GERENCIAMENTO DE ÁGUAS NO BRASIL ........................................... 224 
Magda Cristina Villanueva Franco 
 
 
PRINCÍPIO DA SUSTENTABILIDADE: Instrumento jurídico à concretização da justiça social e 
ambiental ......................................................................................................................................... 238 
Sonia Aparecida de Carvalho 
Celso Costa Ramires 
O REGIME DITATORIAL COMO UMA POSSÍVEL SOLUÇÃO PARA OS PROBLEMAS AMBIENTAIS: UMA 
POSSIBLIDADEEXTREMA ................................................................................................................. 259 
Rodrigo Chandohá da Cruz 
 
VII 
 
APRESENTAÇÃO 
Em outubro e novembro de 2014, foi realizado no Programa de Pós-Graduação Stricto 
Sensu em Ciência Jurídica da UNIVALI - PPCJ, a Escola de Altos Estudos da CAPES com o Professor 
Doutor Michel Prieur, um dos nomes mais importantes em Direito Ambiental e Sustentabilidade 
em todo o mundo. 
A Escola de Altos Estudos é uma iniciativa da CAPES para fomentar a cooperação acadêmica 
e o intercâmbio internacional em cursos e programas de pós-graduação stricto sensu de mestrado, 
doutorado e pós-doutorado. Seu objetivo é trazer professores e pesquisadores estrangeiros de 
elevado conceito internacional para a realização de cursos monográficos, a fim de fortalecer, 
ampliar e qualificar os programas de pós-graduação de instituições brasileiras. 
O tema principal desenvolvido na Escola de Altos Estudos foi "Princípio da proibição de 
retrocesso em matéria socioambiental e proteção de processos ecológicos essenciais e tutelas de 
grupos sociais vulneráveis", tendo sido a temática divida em 5 módulos de estudos, a saber: 
Princípio da não regressão; Avaliação Ambiental e Avaliação Transfronteiriça; Catástrofes, Direitos 
Humanos e Deslocados; Acidentes nucleares e Direitos Humanos; e Governança Ambiental, o que 
oportunizou a interação e troca de experiência entre o renomado jurista e toda a comunidade 
acadêmica. 
No site do Programa de Pós-Graduação Stricto Sensu em Ciência Jurídica da UNIVALI – PPCJ 
podem ser acessados os vídeos das aulas de todos os módulos em área específica para a Escola de 
Altos Estudos. 
Nesse sentido, a presente obra é fruto dos trabalhos produzidos em decorrência dos 
estudos realizados nos módulos da Escola de Altos Estudos, apresentada como uma coletânea dos 
melhores artigos científicos elaborados pelos participantes da Escola, bem como alguns textos de 
Professores do Programa e do exterior. 
Este volume se inicia com um célebre artigo dos Professores da Widener University – 
Delaware Law School Erin Dale e James R. May, trabalho advindo dos Estados Unidos da América, 
que versa sobre tema em que aquela escola de Direito é referencia, qual seja, o Direito 
Constitucional Ambiental, sob o título “Constitutional Environmental Rights and Liabilities”. 
Outro trabalho do corpo docente foi o produzido em coautoria pelo Coordenador do 
Programa de Pós Graduação em Ciência Jurídica da UNIVALI, Prof. Paulo Márcio Cruz, com o 
emérito Prof. da Universidade de Alicante Gabriel Real Ferrer, sobre a variável tecnológica e sua 
repercussão na sustentabilidade (“Direito, Sustentabilidade e a Premissa Tecnológica como 
Ampliação dos seus Fundamentos”). 
O restante da obra é divida nos outros dois módulos da Escola de Altos Estudos, não 
trabalhados no primeiro volume: “Avaliação Ambiental e Avaliação Transfronteiriça” e 
“Governança Ambiental”. 
O primeiro Módulo trabalhado, com tema Avaliação Ambiental e Avaliação 
VIII 
 
Transfronteiriça, contou com trabalhos de duas Mestres e Doutorandas do Programa, a saber: “A 
Avaliação Ambiental Estratégica e sua Relação com o Direito Ambiental: um Instrumento 
Garantidor da Sustentabilidade”, de Heloise Siqueira Garcia e “Impactos Ambientais e Sociais 
Causados pelo Uso de Agrotóxicos no Brasil”, de Rafaela Bogo Koch. 
 O segundo Módulo trabalhado neste volume, sobre “Governança Ambiental”, contemplou 
os seguintes textos: A) de Amadeu Elves Miguel e Guilherme Nazareno Flores, “Governança 
Ambiental e acesso à informação: diálogo na perspectiva dos desafios da Justiça Ambiental e 
desenvolvimento”; B) de Camila Monteiro Santos Stohrer, “A legislação ambiental brasileira à luz 
da Convenção de Aarhus”; C) de Caroline Vieira Ruschel, “Governança global ambiental: o 
pensamento complexo como pressuposto fundamental”; D) de Claudia Regina de Souza Pereira 
Severo e José Everton da Silva, “A figura do ‘amicus curiae’ no ordenamento jurídico brasileiro: um 
estudo de caso a partir da Ação Direta de Inconstitucionalidade das Leis Complementares n. 214 e 
215 de 31 de dezembro de 2012 – Lei de Zoneamento de Itajaí/SC”; E) de Gilmara Vanderlinde 
Medeiros D’Ávila, “A reserva florestal legal”; F) de Maga Cristina Villanueva Franco, “O novo 
paradigma da sustentabilidade e os anseios do bem-estar equilibrado e da boa governança”; G) de 
Rodrigo Chandohá da Cruz, “O regime ditatorial como uma possível solução para os problemas 
ambientais: uma possibilidade extrema”; H) de Sônia Aparecida de Carvalho e Celso Costa 
Ramires, “Princípio da sustentabilidade: um instrumento jurídico à concretização da justiça social e 
ambiental”. 
 São ao todo, nos dois volumes, 26 artigos, todos da melhor qualidade técnica e científica, 
que o PPCJ, com o apoio da Editora da UNIVALI têm a grata satisfação de trazer a público, como 
fruto de mais uma iniciativa de aprofundamento dos estudos na área ambiental e da 
internacionalização do Programa, sempre em prol dos alunos e da comunidade jurídica brasileira. 
 
 
Marcelo Buzaglo Dantas 
Advogado militante e consultor jurídico na área ambiental. Doutor em Direitos Difusos e 
Coletivos pela Pontifícia Universidade Católica de São Paulo e Pós-Doutorando da linha de 
Pesquisa Direito Ambiental, Transnacionalidade e Sustentabilidade do Programa de Pós-
Graduação em Ciência Jurídica da Universidade do Vale do Itajaí. 
ORGANIZADOR 
9 
 
CONSTITUTIONAL ENVIRONMENTAL RIGHTS AND LIABILITIES1 
 
Erin Daly2 
James R. May3 
 
It may now be taken as well settled that Article 32 does not merely confer power on this 
Court to issue a direction, order or writ for enforcement of the fundamental rights but it also lays a 
constitutional obligation on this Court to protect the fundamental rights of the people and for that 
purpose this Court has all incidental and ancillary powers including the power to forge new 
remedies and fashion new strategies designed to enforce the fundamental rights. It is in 
realization of this constitutional obligation that this Court has in the past innovated new methods 
and strategies for the purpose of securing enforcement of the fundamental rights, particularly in 
the case of the poor and the disadvantaged who are denied their basic human rights and to whom 
freedom and liberty have no meaning. 
Indian Supreme Court, Shriram Foods case (1987) 
Environmental constitutionalism can have an important effect on environmental liability. 
About three-quarters of nations worldwide have adopted constitutions that address 
environmental matters in some fashion, some by committing to environmental stewardship, 
others by recognizing a basic right to a quality environment and still others by ensuring procedural 
environmental rights.4 Most people on earth live under constitutions that protect environmental 
rights and promote sustainability in some way. 
The courts that have embraced these provisions have transformed a notion writ large - 
 
1
 Copyright@2012, al rights reserved. 
2
 Professor Widener Law, Wilmington, Delaware. 
3
 Professor Widener Law, Wilmington, Delaware 
4 
See generally, J. May and E. Daly, "Global Constitutional Environmental Rights", in Routledge Handbook of International 
Environmental Law (Shawkat Alam, Jahid Hossain Bhuiyan, Tareq M. R. Chowdhury and Erika J. Techera, Eds., Oxford, 2012); 
James R. May and Erin Daly, "Vindicating Fundamental Environmental Rights Worldwide", 11 Ore. Rev. Intl. L. 365-440 (2010); 
James R. May and Erin Daly, "New Directions in Earth Rights, Environmental Rights and Human Rights: Six Facets of 
Constitutionally EmbeddedEnvironmental Rights Worldwide", IUCN Academy of Environmental Law e-journal, vol. 1, 2011, 
posted Feb. 22, 2011; May and Daly, "Constitutional Environmental Rights Worldwide", in "Principles of Constitutional 
Environmental Law (James R. May ed., ABA Publishing, Envtl. L. Inst. 2011); James R. May, "Constituting Fundamental 
Environmental Rights Worldwide", 23 Pace Envtl. L. Rev. 113 (2006). 
10 
 
environmental human rights - into a multitude of national narratives writ small. Along the way, 
they have protected the last stands of ancient forests in the Philippines, the last cold-climate 
forests in Patagonia, the Ganges River in India, the Acheloos River in Greece, the celebrated 
woodlands of Hungary, and water supplies in Africa. In many cases, constitutionally enshrined 
environmental rights provided the last clear chance for people to vindicate their human rights to a 
healthy environment. As such, there is growing support for expanding constitutional 
environmental rights to new venues and applications.5 
This expansion of constitutional law has the potential to transform the conversation about 
liabilities for environmental harm. Courts that have been sympathetic to claims of environmental 
degradation have used their opinions to affirm environmental values, pushing forward social 
awareness about the dangers of environmental negligence, climate change, and development that 
is not sustainable, among other things. This development in constitutional environmental rights is 
also having a profound impact on the possibilities of constitutional reformation, intergenerational 
equity, legislative responses to environmental challenges, and the need for policy decisions to be 
made through open and inclusive processes.6 
Nonetheless, courts in some countries are still reluctant to recognize the right to a clean 
environment. This maybe due to concerns about the absence of a limiting principle entailed in 
enforcing such a right, or about Courts' own impotence in forcing compliance with orders to 
remedy environmental degradation. Indeed, despite their commonness in constitutions, most 
environmental rights provisions have yet to be energetically pursued in courts in many nations. 
Notwithstanding remarkably progressive language in South Africa's constitution, for instance, 
there have been very few significant decisions from that country's constitutional Court 
interpreting the ample right to environmental well-being.7 
But the trend of judicial enforcement is positive and powerful, given the increasing 
 
5
 See, e.g., Ole W. Pedersen, "European Environmental Human Rights and Environmental Rights: A LongTime Coming?" (December 
30, 2008) Georgetown International Environmental Law Review, Vol. 21, No. 1, 2008. Available at SSRN: hop: 
//ssrn.com/abstract=l1122289. 
6 
See, e.g., Stephen J. Turner, "A Substantive environmental right" (2008); Tim Hayward, "Constitutional Environmental Rights" 12-
13 (2005) (advocating constitutional incorporation of environmental rights); Richard P. Hiskes, "The Human Right to a Green 
Future" (2009) (arguing for constitutional consideration of future generations); David Boyd, "The Environmental Rights 
Revolution —A Global Study of Constitutions, Human Rights and the Environment" UBC Press (2012). 
7 
See in Fuel Retailers Association of South Africa (Pty) Ltd v. Director-General Environmental Management Mpumalanga and 
Others, 2007 (10) BCLR 1059 (CC) (Fuel Retailers case) available at http://www.saflii.org/za/cases/ZACC/2007/13.html. See 
generally Louis J. Kotzê and Anél du Plessis, "Some Brief Observations on Fifteen Years of Environmental Rights Jurisprudence in 
South Africa", 3 Journal of Court Innovation 157 (2010). 
11 
 
attention that constitutions are giving to environmental rights and the growth of constitutional 
jurisprudence generally in all regions of the world. And the ambit of constitutional law is growing 
too, as courts are incorporating into their national jurisprudence international norms - thereby 
contributing to the hardening of otherwise soft international law. Environmental rights also give 
rise to borrowing from national and transnational common law and other general principles of 
environmental law, some of which have been codified at the national level, while others remain 
subject to development and elucidation by the courts. 
Environmental cases are among constitutional law's most complicated to remedy because 
the injuries, as we have seen, can be multi-faceted with many inter-dependent and often moving 
parts, and with both short- and long-term consequences for the environment and for the humans 
who live, or will live, in it. And most courts are keenly aware of the limitations of their own power; 
courts have no particular resource other than their own legitimacy to ensure respect for or 
compliance with judicial orders. And yet, courts have chosen to engage because they realize that, 
through coordination with other parts of government and in dialogue with both the public and 
private sectors, they can play a pivotal role in securing environmental rights. 
This article surveys the types of remedies courts have developed in the environmental 
cases where they have found liability for violation of constitutional rights. Part I explores liabilities 
and state obligations under the international legal framework and Part II examines the range of 
remedies that courts have used. Despite the challenges, courts have been extraordinarily creative 
in designing remedies that are ambitious enough to be effective in remedying the environmental 
damage, yet defined and limited enough that defendants can implement them. Still, defendants - 
both official and private - can be recalcitrant, and we consider in the second part of this article the 
challenges that courts face in enforcing the remedies they have ordered. Although the cases span 
the globe, the majority of cases in which the courts are so heavily engaged that their remedial 
orders go beyond the typical are from the Philippines, a few countries in Latin America, and the 
Indian subcontinent, including Bangladesh and Nepal. 
 
1. LIABILITY AND STATE OBLIGATIONS UNDER THE INTERNATIONAL LAW FRAMEWORK 
 
Internationally accepted ideas of the various obligations engendered by human rights 
indicate that all rights - both civil and political rights and social and economic - generate at least 
12 
 
four levels of duties for a state that undertakes to adhere to a rights regime, namely the duty to 
respect, protect, promote, and fulfill these rights.8 This approach has been incorporated into many 
countries' environmental constitutionalism. The Philippine Court, for instance, has made clear that 
the State owes different levels of obligation: "a balanced and healthful ecology and to health are 
mandated as state policies by the Constitution itself, thereby highlighting their continuing 
importance and imposing upon the state a solemn obligation to preserve the first and protect and 
advance the second […]”.9 The Dutch Constitution uses mandatory language. It states that "[i]t 
shall be the concern of the authorities to keep the country habitable and to protect and improve 
the environment."10 Similarly, but more emphatically, the Constitution of Bhutan devotes an 
entire article to the protection of the environment, which, in addition to imposing duties on 
citizens to safeguard the environment, also imposes these obligations on the government: "the 
Royal Government […] shall safeguard the biodiversity of the country; (b) Prevent pollution and 
ecological degradation; (c) Secure ecologically balanced sustainable development while promoting 
justifiable economic and social development;and (d) Ensure a safe and healthy environment."11 A 
Court in Turkey has used the affirmative obligation in that country's constitution to hold the 
government liable for failure to protect the environment.12 This echoes the levels of obligation 
that have been identified by some courts even in the absence of textual adumbration. 
These levels of obligation require progressively greater commitment on the part of the 
government (and sometimes private parties). Yet, even the most moderate level may, in the hands 
of the right Court, significantly constrain the government and obligate it to change its policies. For 
instance, licensing a company to clear-cut a forest may violate the obligation to "respect" the 
environment. 
Beyond that, under a constitution that requires the government to "protect" the 
environment, a Court might require the government to take affirmative steps to create an 
environmental protection agency or to incorporate environmental concerns into its energy or 
 
8 
See Soc. & Econ. Rights Action Ctr. v. Nigeria, Commc'n 155/ 96, African Commission on Human and Peoples' Rights 65 (Oct. 27, 
2001), available at http://www.cesr.org/downloads/ AfricanCommissionDecision.pdf.. 
9
 Juan Antonio Oposa et al., v. The Honorable Fulgencio S. Factoran, Jr., in his capacity as the Secretary of the Department of 
Environment and Natural Resources, and the Honorable Eriberto U. Rosario, Presiding Judge of the RTC, Makati, Branch 66, 
respondents. [G.R. No. 101083. July 30, 1993]. 
10 
Constitution of the Kingdom of the Netherlands of August 24, 1815, Art. 21. 
11
 Constitution of the Kingdom of Bhutan, 2008, Art. S. 
12 
May 1997, Ref. No. 1996/5447, Ruling No. 1997/2312, Senih Ozay v. Ministry of the Env 't [hereinafter Senih Ozay], translated in 
4 Int'l Envtl. L. Rep. 452, reprinted in Kravchenko and Bonine, "Human Rights and the Environment" (Carolina Academic Press 
2008), at 90-91. 
13 
 
economic development program. "Protection" could also require the government to take 
measures to ensure sustainability. 
A constitutional obligation to "promote" may authorize judicial orders not only to preserve, 
but also to improve the environment including, for instance, cleaning up a longstanding toxic 
waste site, reducing air or water pollution below current levels, and so on. 
And finally, where the obligation to "fulfill" the right to a clean environment exists, a Court 
may order the government to provide the means by which a clean and healthful environment can 
be enjoyed. For example, a government might be required to set aside land or waters as a nature 
reserve, or may be required to include green spaces within development plans for enjoyment by 
present and future generations. 
Each of these levels requires not only increasing action from the State, but increasing 
resources as well. This is, of course, where the obstacles to judicial enforcement creep in. In 
addition to the problems of standing, plaintiffs are unlikely to sue where the payback is not worth 
the cost of litigation. If the most that can he gained under a "respect" case is the cancellation of 
one license, a putative litigant may not bother suing if it is likely that the government would simply 
issue another license to a different timber company the next year. Even if a plaintiff is successful in 
securing a judicial order mandating the development of an environmental plan, he or she may not 
have the resources to sue the following year to ensure that the plan is implemented. In some 
countries where environmental protection is most needed, it is least likely to be enforced for 
reasons of cost, if not political will. Where millions live in deprived conditions with inadequate 
access to shelter and clean water, a sympathetic Court may not have enough muscle to force the 
government to "protect and improve the environment." In any of these situations, the remedy 
may run against private or public entities if the constitutional rules permit horizontal application of 
constitutional norms. For several years in the 1980s, for instance, the Indian Supreme Court 
sought to expand the reach of the Constitution to private entities "primarily to inject respect for 
human-rights and social conscience in our corporate structure. The purpose of expansion has not 
been to destroy the raison d'eter [sic] of creating corporations but to advance the human rights 
jurisprudence."13 
 
 
13 
M.C. Mehta v. Union of India (Shriram Foods) 1987 SCR (1) 819 (rejecting American state action doctrine, but not confirming 
liability against corporation in that case due to lack of time and information, in a case involving a leak of oleum). 
14 
 
2. THE RANGE OF REMEDIES 
 
2.1 Preventing Further Environmental Harm 
 
In the narrowest cases where the environmental right is vindicated, the Court denies the 
remedy on environmental grounds. In these cases, the claimant typically seeks to vindicate a 
property interest of some kind, and the environmental issue arises by way of defense; to vindicate 
the environmental interest, the Court denies the remedy sought by the claimant. Under its prior 
constitution, the Hungarian Constitutional Court once rejected a proposed amendment that would 
have converted a protected forest into private land because it would have violated the 
constitutional right to a healthy environment to "the highest level of physical and spiritual 
health."14 For cases like this to be successful, environmental groups within and outside the 
government must be vigilant in identifying property, business, and development-oriented 
litigation that nonetheless raises environmental concerns. In Venezuela, in the 1990s, the 
Supreme Court of Justice invalidated a mining lease on some forest lands that had been previously 
granted by the Mining and Energy Ministry because it ignored environmental consequences. In 
that case, the forest sectoral service of the government had challenged the government's previous 
action.15 
 
2.2 Injunctions 
 
By far the most common remedy in environmental cases is injunctive relief aimed at 
stopping - and then remediating - the environmental degradation. But injunctions come in an 
almost infinite variety of shapes and sizes; a few of the most significant types are discussed here. 
The most direct injunctions order the defendant to stop the activity that is producing the 
environmental harm. In one of the first cases brought by the environmental activist M. C. Mehta, 
the Indian Supreme Court ordered the closure of the tanneries along a section of the Ganges 
because "life, health, and ecology have greater importance to the people" than the tannery 
work.16 In another case, the Court enjoined mining activity on forest land even though the land 
came under the protection of the Conservation Act only after the mining license had been 
 
14 
Magyar Koziony Case No. 1994/No. 55 (Hungarian Constitutional Court, 1994). 
15 
Jesús Manuel Vera Rivera v Ministry of Environment & Renewable Natural Resources, Sup Court of Justice, 21.9. 1999 
(Venezuela) at http://www.unep.org/delc/Portals/119/UNEPCompendiumSummariesJudgementsEnvironment-relatedCases.pdf 
16
 M.C. Mehta v. Union of India, AIR (1987) 4 S. C.C. 463 (India). 
15 
 
granted. The Court explained that "the mining activities being a user of the forest land for non-
forest purpose has to be stopped," and further required the defendant to obtain additional 
authorization from the central government under the Act if it intended to continue similar 
activities.17 The Supreme Court of Nepal prohibited the use ofdiesel trucks in the city of 
Kathmandu18 and courts in Bangladesh have at times been particularly active. In this regard, 
Parvez Hassan and Azim Azfar describe one series of cases. 
In a public interest litigation concerning air and noise pollution, the Dhaka High Court 
ordered the Government to convert petrol and diesel engines in government-owned vehicles to 
gas-fueled engines; the same order also call for the withdrawal of hydraulic horns in buses and 
trucks by 28 April 2002 Another far reaching decision of the Dhaka High Court called for the 
withdrawal of two- stroke engine vehicles from Dhaka City by December 2003, the cancellation of 
licenses for nine-year-old three-wheelers, the provision of adequate numbers of compressed 
natural gas stations, and the establishment of a system for issuing fitness certificates for cars 
through computer checks.19 
Courts in Latin America have been willing not only to remedy existing problems but to 
intervene in proposed projects and development programs to vindicate environmental interests. 
In 1993, the Chilean Supreme Court stopped the construction of six hydroelectric dams on Bio Bio 
River because the project failed to comply with environmental standards, threatening both 
environmental and human rights.20 And in CODEFF v. Ministry of Public Works, the Court stopped 
the extraction of water from Lake Chungará for an irrigation project because it would have raised 
salinity levels in a UNESCO biosphere reserve.21 
In other Latin American cases, courts have authorized the destruction of private property if 
necessary to stop the despoliation of the environment. In Donato Furio Giordano v. Ministry Of 
Environment And Natural Resources, the Supreme Court of Justice of Venezuela ruled that the 
destruction of private property, where some septic tanks had been polluting marine waters, was 
 
17 
Samatha v. State of Andhra Pradesh and Ors. 1997 Supp (2) SCR 305, following T.N. Godavaman Thintmulkpad v. Union of India & 
Ors. in Writ Petition No. 202 of 1995. 
18
 Advocate Kedar Bhakta Shrestha v. HMG, Dept ofTransp. Mgmt.,Writ No. 3109 of 1999 (Nepal). 
19
 Parvez Hassan & Azim Azfar, "Securing Environmental Rights Through Public Interest Litigation in South Asia", 22 Va. Envtl. L.J. 
215, 244(2004). 
20
 Pablo Orrego Silva v. Empressa Electrical Pange SA. 1993. Supreme Court of Chile. 
21
 CODEFF v. Minister of Public Works and others, 21 August 1985, Compendium of Summaries of Judicial Decisions in Environment-
Related Cases, p. 75. 
16 
 
not only authorized; it was not subject to restitution or compensation as government destruction 
of property normally would be because of the environmental hazard that such property posed.22 
And in a case brought by the Ecuadorian Government to enjoin illegal gold mining in rivers, a lower 
Court held that given the failure of previous government efforts to stop the mining and based on 
the rights of nature, the government was authorized to destroy the mining machinery - an order 
which the government carried out with explosives a few days after the ruling.23 
Courts may also design injunctions not only to stop the threatened or ongoing degradation 
of the environment, but to clean up or remedy damage that has already occurred. This may 
involve removal of debris, as it did in Rural Litigation and Entitlement Kendra v. State of Uttar 
Pradesh, where the Indian Supreme Court ordered lessees of lime stone quarries to "remove 
whatever minerals found lying at the site or its vicinity, if such minerals were covered by their 
respective leases and/or quarry permits." The Court mandated the removal be completed by the 
lessees within four weeks. Courts seem to be more likely to require immediate action when not 
only environmental rights are at stake, but human rights as well. In the lime quarry case, the Court 
held that "Article 21 of the Constitution guaranteeing the right to life must be interpreted to 
include the right to live in a healthy environment with minimum disturbances of ecological balance 
and without avoidable harm to the people, to their cattle house and agricultural land and undue 
affection of air, water and environment." It was likely the harm to the local residents that 
prompted the Court's order of immediate action.24 Likewise, in Aurelio Vargas v. municipality of 
Santiago, the Supreme Court of Chile ordered the clean-up of a garbage dump within 120 days 
because of health considerations to neighboring residents.25 Where the harm to humans can be 
documented, defendants may be required not only to remediate but to compensate the 
individuals for injuries incurred or likely to be incurred. In one Colombian case, where toxic fumes 
emanated from an open pit, defendants were required "to remediate the site and to pay past and 
future medical expenses to those who became sick." The Court held that it violated the right to life 
of local residents, even though the evidence concerned threats to their health, but not to their 
 
22
 Donato Furio Giordano v. Ministry of Environment & Renewable Natural Resources (Venezuela) Sup. Ct of Justice, 25.11. 1999. 
23 
República del Ecuador Asamblea Nacional, Comisión de Ia Biodiversidad y Recursos Naturales, Acta de Sesión No. 66 (15 June 
2011) ('República del Ecuador Asamblea Nacional'), found at 
http://asambleanacional.gov.ec/blogs/comision6/files/2011/07/acta-66.pdf. 
24 
AIR 1989 S.C. 359. 
25
 Aurelio Vargas y otros v. Municipalidad de Santiago y otros (The Lo Errazuriz Case) Chile. Corte Suprema 27.5.87. 
17 
 
lives.26 
Some injunctions raise more complex separation of powers questions because they require 
not only a change of practice, but a change of policy. In some cases, courts have required 
governments to reorganize their bureaucracies with jurisdiction over the environment. In a 
landmark case involving the clean-up of Manila Bay, the Philippine Supreme Court ordered the 
creation of a Manila Bay Advisory Committee to receive and evaluate the quarterly progressive 
reports submitted by the various agencies.27 In one case involving the adverse environmental 
effects of an electrical grid, the Supreme Court of Pakistan - instead of balancing the claims of 
competing stakeholders itself ordered a private engineering consultant company, NESPAK, to 
manage the process. "In the problem at hand the likelihood of any hazard to life by magnetic field 
effect cannot be ignored. At the same time the need for constructing grid stations which are 
necessary for industrial and economic development cannot be lost sight of," the Court explained. 
Because the government had proceeded without any attention to the hazards the grid might 
cause to human health, the Court appointed NESPAK as "Commissioner to examine and study the 
scheme, planning, device and technique employed by [the government] and report whether there 
is any likelihood of any hazard or adverse effect on health of the residents of the locality." The 
government was then ordered to submit all the relevant information to NESPAK.28 The Court 
required the government in future cases to issue public notices and invite objections (orally or in 
writing) prior to installing or constructing any grid station or transmission line; this was to continue 
until such time as "the Government constitutes any commission or authority as suggested above." 
Courts have also ordered governments to create environmental plans where none have existed. In 
fact, it has been argued that one of the principal benefits of constitutionalizing environmental 
rights is to create the political pressure necessary to compel governments to adopt statutoryframeworks to protect the environment.29 In Nepal, the Supreme Court ordered the government 
to formulate national policies to protect objects of religious, cultural, historical importance in 
keeping with environmental standards.30 
 
26
 Kravchenko and Bonine, supra note 9, at 70 (discussing Corte [Constitucional, Chamber of Civil and Agrarian Appeals], Castrillon 
Vega v. Federación Nacional de Algodoneros y Corporacion Autonoma Regional del Cesar, Acción de Tutela Case No. 4577, Nov. 
19, 1997 (Colom.)). 
27 
Metro Manila Dev. Auth. v. Concerned Residents of Manila Bay, G.R. Nos. 171947-48 (S.C. Dec 18, 2008) (Phil). 
28
 Shehla Zia v.WAPDA, Human Rights Case No. 15-K of 1992, P L D 1994 Supreme Court 693 at para 16. 
29
 Boyd, at (n3) 28-30. 
30
 "Therefore, taking into account the necessity of concrete and effective measures, a directive order issued to His Majesty's 
Government Cabinet Secretariat to monitor whether the concerned authorities are complying with commitments expressed in 
18 
 
In other cases, the Court limits itself to compelling further study of an environmental 
problem, as courts in Sri Lanka and elsewhere have done.31 Some of these orders designate the 
timing, process, format, or contents of the study being ordered to minimize the government's 
tendency to avoid the obligation or delay in its execution. In the Sri Lankan case, the Court ordered 
that the mining interest was not permitted to enter into any contract relating to a particular 
phosphate deposit until the government conducted "a comprehensive exploration and study." The 
Court detailed some of the contents of the study, insisted that the study be done in consultation 
with the National Academy of Sciences of Sri Lanka and the National Science Foundation, and 
further required that the results of the study be published. As usual, the Indian Supreme Court has 
been painstaking in directing the process of public participation, ordering committees of experts 
to investigate the environmental implications of projects and, in at least one case, identifying the 
particular individuals who should or should not be involved.32 In requiring the clean-up of a mining 
site, the Court ordered that "Such removal will be carried out and completed by the lessees within 
four weeks from the date of this Order and it shall be done in the presence of an officer not below 
the rank of Deputy Collector to be nominated by the District Magistrate, Dehradun, a gazetted 
officer from the Mines Department nominated by the Director of Mines and a public spirit[ed] 
individual in Dehradun."33 In a Colombian case involving the rights of marginalized people who 
earned their living by searching through trash to find recycled items to sell, the Court ordered the 
formation of a committee, within two weeks of the judgment, to determine how best to integrate 
the recyclers into the formal economy, identifying the groups and interests who would be 
represented on the committee, including of course representatives of the recyclers' organizations. 
The committee, the Court said, would participate in the design and implementation of a plan to 
include the recyclers into the local waste management economy and would design affirmative 
steps that must be taken to ensure their effective participation. The Court further ordered the 
committee to submit a report to the constitutional Court within seven months detailing not only 
 
the Convention Concerning the Protection of World Cultural and Natural Heritage, 1972, as well as Nepalese laws, and then to 
take actions for maintaining uniformity in protecting all areas by formulating national policies regarding objects of religious, 
cultural and historical importance." Advocate Prakash Mani Sharma for Pro Public v. His Majesty Government Cabinet Secretariat 
and others, WP 2991/1995 (Nepal Supreme Court Joint Bench 1997.06.09), 
31
 Bulankulama and six others v. Ministry of Industrial Development and seven others, The Supreme Court Of The Democratic 
Socialist Republic of Sri Lanka S.C. Application No 884/99 (RR), published in the South Asian Environmental Reporter, vol. 7(2), 
June 2000. 
32 
See India Godavarman Thirumulpad 2005, Writ Petition (civil) 202 of 1995, (establishing committee of experts to conduct a 
valuation of forests). 
33 
Rural Litigation and Entitlement Kendra Dehradun and Ors. v. State of U.P. and Ors 1985 AIR 652, 1985 S.C.R. (3) 169 at 181. 
19 
 
its progress on the implementation of the plan, but the metrics it would use to determine the 
plan's effectiveness in "the process of inclusion and in the effective enjoyment of rights by the 
recyclers and their families."34 And in a land use planning case from Germany, the constitutional 
Court insisted on the need to obtain an expert opinion about the environmental impact of a 
revision of the land use plan.35 Some of these are related to or based on constitutionally 
entrenched procedural environmental rights. 
Depending on the nature of federal-state relations in each country, judicial injunctions may 
be issued against or in favor of sub-national units. In one case involving marine life, the Philippine 
Supreme Court upheld the power of local governments to promote the constitution's 
environmental values by capturing certain aquatic life in order to protect fish and corals.36 
Courts that are especially engaged in the vindication of constitutional environmental rights 
may issue elaborate injunctive orders that not only reflect real knowledge of the local conditions 
but show deep empathy with the individuals affected by the balance of human and environmental 
interests. In one of the Indian Supreme Court's first major environmental cases, the Court ordered 
the temporary closure of limestone quarries and further study to determine if they should be 
reopened and on what conditions. But, recognizing that the workmen employed at these quarries 
would be either temporarily or permanently "thrown out of work," the Court insisted that "as far 
as practicable and in the shortest possible time, [they be provided employment in the 
afforestation and soil conservation programme to be taken up in this area."37 In another Indian 
case, the Supreme Court ordered the closure of stone-crushing businesses because of the 
environmental harm and damage to human life and health to nearby residents (as well as 
workers); but as stone crushing was already starting up in areas further from where people lived, 
the Court ordered that additional lands be made available, and distributed by lots to those whose 
businesses had closed. As is common in the Indian Supreme Court, the Court required reports by 
the responsible authorities and calendared a follow-up hearing.38 
In the 2008 case ordering the restoration of Manila Bay, the Philippine Supreme Court 
 
34
 SentenciaT-291/09 (Recyclers' Case) at p. 96. (Colombia. Constitutional Court. April 23, 2009). 
35 
Judgment of March 1, 1989, Verwaltungsgerichtshof [VGH] V 25/88. 
36 
Tano v. Socrates, G.R. No 110249, 278S.C.R.A. 154 (Aug. 21. 1997) (Phil.). See also Social Justice Soc'y v. Atienza, G.R. No. 156052, 
517 S.C.R.A. 657 (Mar. 7, 2007), reconsidered, 545 S.C.R.A. (Feb. 13, 2008) (Phil.) (regarding authority of local legislatures and 
executives to fulfill constitutional environmental obligations). 
37
 Rural Litigation, 1985 AIR 652, 1985 SCR (3) 169, 180. 
38
 M.C. Mehta v. Union of India and Others, 1991 SCR (1) 866 1991 SCC (2) 353 IT 1991 (1) 620 1991 SCALE(1)427 at p. 4. 
20 
 
issued a comprehensive 12-point injunctive order, which directed not only the results to be 
accomplished, but the process to be used to ensure its accomplishment. The Court's order 
required the meetings that government agencies must organize, studies to determine the 
adequacy of sewage facilities, that violators of environmental laws and regulations be 
apprehended, that licensing requirements be enforced, and so on. The Court also ordered the 
Education Department to "integrate lessons on pollution prevention, waste management, 
environmental protection, and like subjects in the school curricula of all levels to inculcate in the 
minds and hearts of students and, through them, their parents and friends, the importance of 
their duty toward achieving and maintaining a balanced and healthful ecosystem in the Manila Bay 
and the entire Philippine archipelago."39 Most of these requirements flowed from the statutory 
and regulatory framework but they were enacted, and enforced in this case, to vindicate the 
constitutional environmental right to a clean environment. 
The Philippine Court is not the only Court to require public information about the 
environment as a part of a remedial plan. In the landmark case involving noise and air pollution 
caused by vehicles in the city of Dhaka, the Bangladeshi Supreme Court directed the government 
to publicize "through print and electronic media" the extant legal requirements and to "proceed 
against the vehicle operators by taking penal action if they fail to remove such types of prohibited 
horns after the expiry of the period of 30 days." The judicial orders regarding the replacement of 
diesel engines in government and other transport vehicles, the Court ordered the government to 
"give publicity to the directions of this Court in print and electronic media on consecutive days 
twice in a week for one month.”40 In Karnataka Industries, the Indian Supreme Court articulated 
the importance not only of environmental improvement, but of what might be thought of as 
environmental acculturation: “The importance and awareness of environment and ecology is 
becoming so vital and important that we, in our judgment, want the appellant to insist on the 
conditions emanating from the principle of 'Sustainable Development". To implement these 
principles, the Court directed that "iii future, before acquisition of lands for development, the 
consequence and adverse impact of development on environment must be properly 
comprehended and the lands he acquired for development that they do not gravely impair the 
 
39
 Metro Manila Dcv. Auth. v. Concerned Residents of Manila Bay, G.R. Nos. 171947-48 (S.C., Dec. 18, 2008). (Phil.). 
40 
Farooque v. Government of Bangladesh WP 300 of 1995 (2002.03.27) (Bangladesh Supreme Court) (Vehicle Pollution Case: Court 
Order). 
21 
 
ecology and environment."41 Such comprehension on the part of all the stakeholders requires that 
information be made available to all in advance of any decision that would adversely affect the 
natural environment. 
As with the Indian Supreme Court's continuing mandamus, the Bangladesh Court also 
required the government to "submit reports every six months of actions and results of the ... 
above directions to this Court." 
Despite the range and variety of judicial orders and the extraordinary efforts that some 
courts have made to ensure compliance with their orders, courts do realize that environmental 
rights are usually considered socioeconomic rights which, in many systems, are not subject to 
individual demand, or amenable to immediate implementation. In Mazibuko v. City of 
Johannesburg, a 2011 water rights case, the South African Supreme Court explained that "the right 
does not require the state upon demand to provide every person with sufficient water without 
more." Rather, the Court said, "it requires the state to take reasonable legislative and other 
measures progressively to realise the achievement of the right of access to sufficient water, within 
available resources." Indeed, the Constitution itself requires the state to" take reasonable 
legislative and other measures, within its available resources, to achieve the progressive 
realisation of each of these rights." The Mazibuko Court explained that a state's compliance with 
this requirement would be measured by the reasonableness of its efforts, not by their success. 
While this disappointed many South African activists, the Court maintained that courts "are ill-
suited to adjudicate upon issues where Court orders could have multiple social and economic 
consequences for the community. The Constitution contemplates rather a restrained and focused 
role for the Courts, namely, to require the State to take measures to meet its constitutional 
obligations and to subject the reasonableness of these measures to evaluation."42 
Thus, a litigant may always argue that the state has failed to develop a policy concerning 
the right - viz, environmental protection—or that the policy has not been adequately revised and 
updated, and has been allowed to he dormant. However, the Court emphatically rejected the 
notion that socioeconomic rights contain a particular "minimum core" which must be respected or 
provided in the legislative plan.43 The Colombian Constitutional Court has also adopted the 
 
41 
Karnataka Industrial Areas Development Board v. Sri C. Kenchappa and Ors. India Supreme Court, May 5, 2006, at 104. 
42
 Mazibuko v. City of Johannesburg 2009 ZACC 28, Case CCT 39/09 (CC), ¶ 55 (S. Aft.). 
43 
Mazibuko at ¶ 50. See also id. at ¶¶ 40, 53, 56. 
22 
 
principle of progressive realization, noting that it requires, at a minimum, for the state to provide a 
plan for the effective enjoyment of the right.44 
Progressive realization - though not named as such - may also be seen in the continuing 
injunctions that many courts have issued in environmental cases. In the Bangladeshi industrial 
pollution case, the Court ordered some existing industrial units and factories to adopt "adequate 
and sufficient measures to control pollution" within one year, and others within 2 years and in 
every case to report back to the Court; it further ordered that no new industrial units and factories 
be, at any time in the future, "set up in Bangladesh without first arranging adequate and sufficient 
measures to control pollution.”45 
In certain cases involving future development, the Supreme Court of India has insisted that 
certain conditions be satisfied before land can be acquired or plants can be reopened.46 And in 
one notable case from Pakistan - initiated when a member of the Court saw a newspaper notice 
about dumping of nuclear waste along a coastal area, the Court ordered not only that a list of all 
persons to whom coastal land had been allotted be submitted to the Court but also that the state 
government submit the particulars of any application for future allotment of coastal lands because 
"To dump waste materials including nuclear waste from the developed countries would not only 
be hazard to the health of the people but also to the environment and the marine life in the 
region.”47 
Perhaps recognizing the limits of the judicial power, some of these courts have included in 
their mandatory orders provisions that are merely hortatory. In the Pakistani case, the Court also 
suggested that the responsible authorities "should insert a condition in the allotment 
letter/license/lease that the allottee/tenant shall not use the land for dumping, treating, burying 
or destroying by any device waste of any nature including industrialor nuclear waste in any form." 
In Anjum Ifran v. Lahore Development Authority, the Lahore Pollution case, the Court went further 
and included a list of "suggestions... for formulating the policy and relevant rules and law."48 In the 
Manila Bay case, the Court required the budget department to "consider incorporating an 
 
44
 Sentencia T-291/09 (Recyclers Case) Colombia. Constitutional Court 2010. 
45
 Bangladesh—Farooque v. Government of Bangladesh WP 891 of 1994 (2007.07.15) (industrial pollution case). 
46 
See Karnataka, supra n. 38, and see M. C. Mehta and Anr. Etc v Union of India and Ors. etc 1986, 1987 AIR 965, 1986 SCR (1) 312. 
47
 In Re Human Rights Case (Environment Pollution in Balochistan) No. 31—K/92(Q), PLD 1994 Supreme Court 102 (Pakistan 
Supreme Court 1992), available at http://www.unep.org/padelia/publications/Jud.Dec.Nat.pre.pdf at p. 280. 
48 
Anjum Irfan v. Lahore Development Authority, Writ Petition No.25084 Of 1997 P L D 2002 Lahore 555 (2002). 
23 
 
adequate budget in the General Appropriations Act of 2010 and succeeding years to cover the 
expenses relating to the cleanup, restoration, and preservation of the water quality of the Manila 
Bay." And in the groundwater pollution case, the Indian Supreme Court asked the government to 
consider whether "chemical industries should be regulated separately and whether the siting of 
both new and existing plants should be revisited," given the water-intensive nature of the 
activities. While the language is hortatory, the Court insisted that the government's quarterly 
reports include reference to these considerations.49 The extent to which these admonitions are 
effective is a function of the relationship between the political authorities and the Court. 
Hortatory or suggestive orders may be particularly appealing to courts when enforcing 
directive principles of state policy which may be explicitly exempt from judicial review. In one such 
case, the Supreme Court of Nepal issued "a directive order ... to His Majesty's Government ... to 
monitor whether the concerned authorities are complying with [both international and domestic 
laws], and then to take actions for maintaining uniformity in protecting all areas by formulating 
national policies regarding objects of religious, cultural and historical importance." But, reflecting 
some impatience, the Court demanded to see not only the efforts but the results: "It is not 
sufficient to state, in its written statement, that the government is alert about protection. 
Commitment should also be reflected by action and creation of public awareness. Plans adopted 
since 1954 should be evaluated for how successful they have been."50 
Most injunctive remedial orders reflect well-recognized environmental law principles and 
values, including especially the precautionary principle and the norm that polluters pay for the 
costs of remediating the environmental harms they have caused. Some of these obligations are 
imposed as a matter of international law; the Treaty for the Functioning of the European Union, 
for instance, states that "Union policy on the environment ... shall be based on the precautionary 
principle and on the principles that preventive action should be taken, that environmental damage 
should as a priority be rectified at source and that the polluter should pay."51 Many governments 
have incorporated these principles into their framework laws52 and courts that are sensitive to the 
 
49
 Indian Council for Enviro-Legal Action etc. v. Union of India and Ors. etc, 1996 Air 1446, 1996 SCC (3) 212, Jt 1996 (2) 196 1996 
Scale (2) 44, at p. 35. 
50 
Advocate Prakash Mani Sharma for Pro Public v. His Majesty's Government Cabinet Secretariat and Ors., WP 2991 /1995 (Nepal 
Supreme Court Joint Bench 1997.06.09). 
51 
European Union, "Consolidated version of the Treaty on the Functioning of the European Union", 13 December 2007, 2008/C 
115/01, available at: http://www.unhcr.org/refworld/docid/4bl7a07e2.html [accessed 5 September 2012], Article 191. 
52
 See e.g. Ecuador Environmental Law 99 of 1993. 
24 
 
peculiarities of environmental damages have been quite willing to adopt them as a matter of their 
own domestic constitutional law. In seeking to protect the Taj Mahal, for instance, the Indian 
Supreme Court said that "the 'primary duty' of the government and its Ministry of Environment 
was to 'safeguard' the monument."53 That Court has further explained the policy underlying the 
polluter pays principle in this way: "The Polluter Pays principle demands that the financial costs of 
preventing or remedying damage caused by pollution should lie with the undertakings which 
cause the pollution, or produce the goods which cause the pollution. Under the principle it is not 
the role of Government to meet the costs involved in their prevention of such damage, or in 
carrying out remedial action, because the effect of this would be to shift the financial burden of 
the pollution incident to the taxpayer."54 Another option would he to require those whose 
activities may impact the environment to take out ecological insurance.55 
 
2.3 Damages 
 
Absent explicit constitutional or statutory authorizations, damages are not typically apt 
remedies for constitutions environmental violations. Damages shift the cost of engaging in 
objectionable behavior, but they put the burden of remedying the problem on the plaintiff. In 
environmental cases, however, courts that have been receptive to plaintiffs' complaints are more 
likely to try to remedy the harm that has been done to the environment than merely make it more 
costly to harm it; a damage award does not help the broader swath of people who are affected by 
the environmental degradation, or future generations, or the environment itself. The defendant is 
usually in a better position than the plaintiff - particularly where the latter are individuals or non-
profit organizations suing on behalf of underserved populations - to remedy the environmental 
harm because the defendant is likely to have significantly greater resources and means. 
Moreover, where the defendant is the government as is typically the case in constitutional 
litigation, courts may be hesitant to exact costs from the national treasury if doing so would result 
in a windfall to the plaintiffs, particularly where the injuries are widespread and affect more 
people than those who litigated. Government defendants may also be immune from damage 
 
53 
Mehta v. Union of India, AIR 1997 S.C. 723 (India), as discussed in Eric Dannenmaier, “Environmental Law and the Loss of 
Paradise”, 49 Col. J. Transn. Law 463, 474 (2011), reviewing Oliver A. Houck, "Taking Back Eden: Eight Environmental Cases that 
Changed The World". 
54
 Indian Council for Environ-Legal Action v. Union of India (l996) supra n 46. 
55 
Re Chile Trillium. Eric Dannenmaier, "Environmental Law and the Loss of Paradise", supra n 50. 
25 
 
awards under constitutional or statutory authority. Damage awards in environmental cases can 
also lead to additional and prolonged litigation about the size of the award, particularly when 
there are significant resources at stake, as for instance in the ongoing litigation in Ecuador against 
Chevron/Texaco. In such cases, civil suits for damages may be authorized but need to be filed and 
pursued separately.56 Even in these jurisdictions, however, costs may be awarded. Finally, there 
are constitutional cultures, particularly in Asia, in which damage awards are rare in general, and no 
more common in environmental cases.57 Even in thesejurisdictions, however, costs may be 
awarded. Where they are permitted, a damage award may be a part of a remedial order, but in 
few cases does it completely resolve the controversy. 
In Colombia, as in other jurisdictions, the framework of environmental laws permits 
damages to compensate for the misuse of natural resources, as well as punitive damages in some 
cases. A 1993 law, which the Constitutional Court upheld in 1996, also permits the application of 
retributive taxes on those whose activities contribute to environmental deterioration or 
unsustainability, such as in the case of waste dumping, as well as compensatory taxes and taxes 
for the usage of water. The Court explained that a retributive tax is an obligatory payment 
imposed not for services provided but for the damage caused to the environment; it has, in that 
sense, the character of an indemnity.58 
A 2009 law created a more elaborate set of sanctions including preventative, 
compensatory, and punitive damages; this law was upheld in 2011 against charges that the 
damage awards were ill-defined and that the scheme subjected defendants to liability multiple 
times for the same infraction. In an extraordinary opinion that recites at length the obligations 
that every country has to nature and to future generations, the Court explained that "nature is not 
limited only to the environment surrounding humans, but also is a subject with its own rights 
which must be protected and guaranteed." Consequently, the Court held, a statutory scheme that 
imposes compensatory damages as well as restitution and that aims to restore nature to its 
previous condition, is fully consistent with both constitutional and international law (including 
 
56 
Marlene Beatriz Duran Comacho v. Republic of Colombia. Constitutional Court (1996). 
57
 Sentencia C-632/11 Colombia Constitutional Court at para 8.10. 
58 
Indian Council for Enviro- Legal Action etc. v. Union of India and Ors., 1996 supra n 46 at p. 34: "So far as the claim for damages 
for the loss suffered by the villagers in the affected area is concerned, it is open to them or any organization on their behalf to 
institute suits in the appropriate civil court. If they file the suit or suits in forms pauperize, the State of Rajasthan shall not oppose 
their applications for leave to sue in forma pauperize." 
26 
 
treaties to which Colombia is a party as well as those to which it is not).59 
 
2.4 Ordering compliance with pre-existing duty 
 
Courts in many countries have available to them something akin to a writ of mandamus - a 
judicial order that requires that the defendant satisfies a pre-existing duty. Often, plaintiffs seek 
such a writ in part because compliance is more readily ensured, and in part perhaps because they 
truly believe that defendants are under a legal obligation to take a particular action. However, 
courts can be reluctant to use the writ if the legal duty is not "definite and fixed," as the Supreme 
Court of Nepal said.60 
In one case from the Philippines, the Supreme Court dismissed a petition seeking 
mandamus because, even though the corporate defendant may have violated the fundamental 
right to clean air, the legislature had not specifically required the use of natural gas and so the 
Court could not require it by way of mandamus.61 Indeed, the power of the writ of mandamus may 
come from the court's inherent authority or it may come from the mandatory language of a 
statute. In the Philippines, the Court required all the government entities involved in remedying 
the pollution in Manila Bay to submit a quarterly progressive report "in line with the principle of 
'continuing mandamus.’”62 In Ratlam V. Vardhichand, the Supreme Court of India compelled a 
municipal council to carry out its duties to the community by constructing sanitation facilities, 
pursuant to clear and mandatory statutory authority. The Court ordered the municipality - under 
penalty of imprisonment - to construct the drains and fill up cesspools and other pits of human 
and industrial waste, notwithstanding the municipality's claimed penury. (The Court noted that 
"the Criminal Procedure Code operates against statutory bodies and others regardless of the cash 
in their coffers, even as human rights under Part III of the Constitution have to be respected by the 
State regardless of budgetary provision").63 And yet, according to a subsequent report, at least 8 
agencies are jointly responsible for some aspect of Delhi's drainage and sanitation infrastructure, 
leading not to over-enforcement, but to under-management and to significant health hazards for 
 
59 
"One other significant aspect of remedies in relation to constitutional rights adjudication is judges making available new remedies 
such as constitutional compensation for state breaches of constitutional rights. This is an unconventional constitutional remedy." 
Ang Hean Leng, “Constitutional Rights Adjudication in Asian Societies” The Law Review (Sweet & Maxwell 2011) 229, 268. 
60
 Dhungel v. Godawari Marble Indus., WP 35/1992 (S.C. Nepal, Oct. 31, 1995) (en banc), available at http://www.elaw.org/node/ 
1849. 
61 
Henares v. Land Transp. Franchising & Regulatory Bd., G.R. No. 158290, 505 S.C.R.A. 104 (Oct. 23, 2006) (Phil.). 
62
 Metro Manila Dev. Auth. v. Concerned Residents of Manila Bay, G.R. Nos. 171947-48 (S.C., Dec. 18, 2008). (Phil.). 
63 
(1980) 4 SCC. 162. 
27 
 
the nearly 4 million people who open storm-water drain systems for waste disposal. "These open 
drains," according to this report, "experience blockage and over-flooding from excessive waste 
and are a growing safety and health concern throughout populated regions of Delhi/NCR." A 
number of injuries have resulted when people accidentally fall into the open drains.64 
It may seem odd or unproductive to expend resources to ask a Court to order the 
government to do what it is already obligated to do. But there are dividends that result from such 
a strategy. In India, for instance, "[T]he main thrust is to substitute the ineffective administrative 
directives issued by the pollution control boards under the Water Act and the Environment 
(Protection) Act, with judicial orders, the disobedience of which invites contempt of Court action 
and penalties."65 Government's nonfeasance in the first place invites judicial review, with the 
burden usually falling on the party challenging the action and with the typical deference to 
coequal branches of government; government's failure to comply with a Court order, however, 
usually shifts the burden to the government to justify its nonfeasance and removes any 
presumption in favor of the government that might otherwise exist. 
 
2.5 imprisonment 
 
Where none of these remedies is sufficient to vindicate environmental rights, repair the 
damage to the environmental, and deter or prevent further abuses, some courts have used the 
ultimate penalty of imprisonment. Imprisonment under certain circumstances is permitted, for 
instance, in such Indian framework laws as the Water (Prevention and Control of Pollution) Act of 
1974, the Environment (Protection) Act of 1986, and the Air (Prevention and Control of Pollution) 
Act of 1981. In one case, from Antigua and Barbuda, the High Court of Justice ordered prison 
sentences of one month each to three government officials for violating a previous interim 
injunction that sought to forbid a company, Sandco, from mining sand. The Ministry of Mining 
officials mined the sand instead but then sold it on the spot to Sandco, which the Court found to 
be a clear violation of the interim injunction. 66 
The varietyand flexibility of tools in these courts' remedial toolkits have facilitated judicial 
 
64 
Leela Khanna, "Open Drainage Throughout Delhi: Who Will Take Responsibility?" available at 
http://csrindia.org/blog/2012/07/02/open-drainagethroughout-delhi-who-wifl-to-take-responsibility/ 
65
 Shubhankar Dam and Vivek Tewary, "Polluting Environment, Polluting Constitution: Is a 'Polluted' Constitution Worse than a 
Polluted Environment?", 17 J. Envtl. L. 383, 389 (2005). 
66 
The Barbuda Council v. Attorney General, High Court of Justice, Antigua and Barbuda, Supreme Court of Justice, Civil AD 1993. 
28 
 
involvement in the vindication of constitutional environmental rights even in situations where 
they might otherwise be tempted to yield to principles of comity and to succumb to concerns 
about their own legitimacy. But in the words of the Indian Supreme Court - certainly the institution 
with the longest-term and deepest commitment to environmental values - "the correct exposition 
of law in a modern welfare Society" prohibits the Court from sitting "idly by" while officials 
abdicate their legal responsibilities. 
The law will relentlessly be enforced and the plea of poor finance will be poor alibi when 
people in misery cry for justice. 
[…] The officers in charge and even the elected representatives will have to face the penalty of the 
law if what the constitution and follow-up legislation direct them to do are denied wrongfully. The 
wages of violation is punishment, corporate and personal.
67
 
And yet, enforcement of judicial orders, particularly in environmental cases, is rarely 
without its obstacles. 
 
 
CONCLUSION 
 
Even where environmental rights are upheld, constitutional environmental cases are 
among the most difficult to enforce for several reasons. In the first Ecuadorian rights of nature 
case, for instance, the government had taken no steps to implement the order to clean up the 
damage done to the river and adjoining property notwithstanding clear directions from the Court, 
forcing the litigants to pursue follow-up enforcement actions. 
First, as we have seen, the injunctive orders can be multi-faceted and extensive, often 
requiring multiple entities to coordinate action. Second, they can be time-consuming in both the 
long- and short-term. The development of a plan may take months but its full implementation may 
take years or go on indefinitely. Third, environmental regulation in general comes at the expense 
of other important societal goals such as development and industrialization, which are the primary 
interests of most defendants, both private and public. And these defendants almost invariably 
constitute the power and economic elite of the country. In combination, these conditions provide 
ample incentive to defendants who would prefer to ignore or avoid their judicially-imposed 
 
67
 Ratlam v.Vardhichand. AIR 1980 SC 1622 (para-24). 
29 
 
obligations. 
In response, courts have developed certain practices aimed at overcoming these 
challenges. As we have seen, courts will regularly require reports and other indications of 
progress. They also often retain jurisdiction over the cases to facilitate plaintiffs' efforts to hold 
defendants responsible, often explicitly inviting further litigation to ensure compliance. In one 
case involving industrial pollution, the Bangladesh Supreme Court asserted that the ENGO, BELA, 
which had brought the suit, was "at liberty to bring incidents of violation of any of the provisions 
of the Act and the Rules made there under to the notice of this Court." In that case, the Court also 
said that "the respondents were at liberty to approach this Court for directions as and when 
necessary so that the objectives of the Act can be achieved effectively and satisfactorily."68 In 
some situations, courts have remained alert to persistent controversies resulting from their 
decisions and have had to issue increasingly emphatic follow-up judgments to propel compliance, 
as has happened in the Colombian cases involving the livelihood of recyclers69 and the Pakistani 
case involving pollution in Lahore.70 
Where courts have maintained their vigilance, there have in some cases been notable 
successes. As a result of the landmark Minors Oposa decision, it has been claimed, "Logging 
concessions were withdrawn and abandoned at such a pace that the one hundred and forty-two 
concessions that existed when Oposa first took up the issue had shrunk to three by 2006."71 The 
restoration of Manila Bay provides another example. But this requires a continued commitment 
not only on the court's part but also on the part of the plaintiffs who originally brought the suit or 
their successors. And this is problematic as well: continued vigilance on the part of plaintiffs 
privatizes the burden for securing what is clearly a public good and it requires the plaintiffs to 
ensure, on an ongoing basis, that the government takes responsibility for the environmental 
violation, and that the government complies with the rule of law as mandated by the judicial 
branch. Enforcing even favorable judgments requires significant resources on the part of the 
original litigants and their lawyers. 
 
68 
Bangladesh—Farooque v. Government of Bangladesh WP 891 of 1994 (2007.07.15) (industrial pollution case). See also M. C. 
Mehta v. Union of India, AIR (1987) 4 S.C.C. 463 (India). 
69
 Auto 275 /11 Colombia Constitutional Court 2011. 
70
 Anjum Irfan v. Lahore Development Authority, Writ Petition No. 25084 Of 1997 P L D 2002 Lahore 555 (2002). 
71
 Eric Dannenmaier, "Environmental Law and the Loss of Paradise", 49 Col. J. Transn. Law 463, 472 (2011), reviewing Oliver A. 
Houck, 'Taking Back Eden: Eight Environmental Cases that Changed the World". 
30 
 
The history of environmental litigation, constitutional and otherwise, is littered with 
examples of abandoned litigation. Indeed one commentator contends that the Oposa litigation 
was never fulfilled because the original plaintiffs did not pursue the matter after the Philippine 
Supreme Court's remand: "The Supreme Court did not order the cancellation of the TLAs, but 
ordered the case to be remanded for trial. Because the petitioners did not pursue the case after it 
was remanded, no TLA was cancelled."72 In Chile, where indigenous and other groups were able to 
stop construction of dams on the Bio Bio River in the early 1990s because of failures to comply 
with regulations, the government was able, within 10 years to pursue construction of other dams 
when the additional hurdles were overcome.73 The moderate victory is the increased participation 
of the affected communities and increased sensitivity to environmental concerns as new and 
ongoing hydroelectric projects are pursued. As the Bangladeshi environmental protection 
organization, BELA, has said: "winning a Court case is only the first step". In Nepal, the 
nongovernmental organization Pro Public has been forced to adopt "a comprehensive strategy for 
obtaining compliance" with Court orders.74 Ensuring enforcement of Court orders is difficult, 
though not impossible to do. 
As we have seen, environmental constitutionalism can have an important effect on 
environmental liabilities.
 
72 
Dante B. Gatmaytan. "The Illusion of Intergenerational Equity: Oposa v. Factoran as Pyrrhic Victory" Georgetown International 
Environmental Law Review 15.3 (2003): 457, 459. 
73 
Jose Aylwin, "The Ralco Dam and the Pehuenche People in Chile: Lessons from an Ethno Environmental